Justice Michael Lee has found that the “inescapable conclusion” was that law student Bruce Lehrmann leaked confidential court documents obtained during his criminal trial, including Brittany Higgins’ private text messages, to Seven’s Spotlight program.
The leaking of the private contents of Ms Higgins’ phone, which she has previously described as “a violation”, has previously been referred to the Australian Federal Police and the National Anti-Corruption Commission.
But despite her complaints, to date no action has been taken in relation to the leaking of the material.
In his 326-page written judgment, Justice Lee finds that there is evidence to support his findings that, at least in one instance, it was Mr Lehrmann.
“In the absence of any other explanation, the inescapable conclusion is that Mr Lehrmann provided access to (Spotlight EP Mark) Llewellyn to take the relevant photographs, and thus wrongly provided him with access to the information contained in the FitzSimons messages,’’ Justice Lee said.
“His representations and evidence to the contrary were false to his knowledge on a serious matter, and this conclusion fortifies my assessment as to his general credit.”
Mr Lehrmann has denied leaking the material and is yet to make any statement in relation to the judgment.
What happens next, Justice Lee writes in his judgement, is a matter for others and the determination of the matter will not be decided by him or the Federal Court.
While the judge was unable to make a determination as to all of the material Channel 10 claims was leaked to Spotlight – including a master chronology document prepared by his lawyers – Justice Lee said he was satisfied that text messages between Ms Higgins and Lisa Wilkinson’s husband Peter FitzSimons were leaked.
Cocaine, sex workers and Spotlight
The issue arose after former Spotlight producer Taylor Auerbach gave evidence of cocaine, brothels and sex workers during his wining and dining for Mr Lehrmann to secure an exclusive interview.
“He gave evidence, consistent with contemporaneous documents and uncontradicted by any evidence in reply by Mr Lehrmann, that he became Mr Lehrmann’s “babysitter” or “minder” as the Seven Network worked to secure an exclusive interview with Mr Lehrmann,” Justice Lee said.
“At some stage, it appears Mr Auerbach was discomforted in being placed in this role, but he nonetheless performed it, sometimes, it appears, ardently. I assume that Mr Lehrmann thought any joint activities with Mr Auerbach would be kept private.
“The specifics are unedifying, and it is unnecessary to make granular findings. In the end, it is fair to conclude that Mr Lehrmann was less than candid in his account of the extent of the benefits he received prior to, and in exchange for, his bargain to participate in giving exclusive interviews to the Seven Network.
“It is fair to remark that the evidence reveals that some of the pre-compact inducements and consideration flowing in the direction of one contractual counterparty was of an unorthodox and undocumented kind. But given the other matters going to credit in this case, it is an inconsequential point.”
Hearne v Street
However, it was Mr Auerbach’s evidence on how Spotlight obtained material which was far more significant.
“As is well known, and as was explained by the High Court in Hearne v Street, where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose than that for which it was given unless it is received into evidence,’’ Justice Lee said.
“The obligation extends to anyone who receives the documents or information knowing the documents or information have been disclosed by compulsion. The circ*mstances in which this substantive legal obligation, which I will call the Hearne v Street obligation, no longer subsist are broader than receipt into evidence, but this detail need not detain us.
“After the first Spotlight program, the broadcast of material apparently subject to the Hearne v Street obligation caused much perturbation on the part of the respondents.
“Following demands for an explanation, upon instructions, Mr Lehrmann’s solicitors repeatedly denied he breached the Hearne v Street obligation.
“His senior counsel, again no doubt acting on express instructions, did the same before me on 9 June 2023.
“Consistently with the instructions provided to his lawyers, Mr Lehrmann gave evidence during the trial to the effect that he did not give documents to the Seven Network, he just gave an interview.”
Justice Lee said any ramifications to flow from this would be handled elsewhere.
“As I explained at the trial, I am not some sort of roving law enforcement official, and if any issue concerning an alleged breach of the Hearne v Street obligation is to be pursued in relation to anyone, it will not be by me, and it will not be by this Court,’’ he said.
“My role is more limited: it is to ascertain whether Mr Lehrmann made (or caused to be made) false representations as to this topic. I am comfortably satisfied he did.”
He noted that three documents or categories of documents were relied upon by Network Ten, including the AFP eBrief served on Mr Lehrmann in the criminal proceeding.
There was also 2312 pages of text messages between Ms Higgins and Mr Dillaway, of which only 17 pages were tendered at the criminal trial, and a “Master Chronology” (obviously prepared by Mr Lehrmann’s counsel for the purpose of the trial) which contains references to material and documents contained in the eBrief and (c) PDF files of messages passing between Ms Higgins and Mr Peter FitzSimons (Ms Wilkinson’s husband), which were not adduced into evidence (FitzSimons Messages).
“Although the file names for the versions of the Dillaway Messages from the eBrief and those produced by Mr Auerbach match and bear the same date and Mr Auerbach says he located them in his iCloud storage, there is no independent proof as to them being provided electronically by Mr Lehrmann to Mr Auerbach during their joint golfing trip to Tasmania as he alleges,’’ Justice Lee said.
“As to (b), although the MC does contain some material sourced from materials subject to the Hearne v Street obligation, it was a document prepared by counsel and the evidence is somewhat opaque as to how it came to be in the hands of the Seven Network.”
Justice Lee said that Mr Lehrmann elected not to give evidence on leaks of Brittany Higgins phone
“Although it is fair to remark the evidence tends to support the contentions as to misuse made by Network Ten, and it is also true Mr Lehrmann elected not to lead evidence to refute Mr Auerbach’s evidence despite having the opportunity to do so, I do not consider it necessary to reach any conclusion as to the Dillaway Messages or the MC, given the state of satisfaction I have reached as to the matter to which I will now turn,’’ he said.
What Justice Lee did make findings in relation to was the photographs of a laptop where the reflection of Spotlight’s executive producer can be seen.
“It is sufficient for present purposes to find:
“(1) photographs of a computer screen displaying the FitzSimons Messages were taken, being the photographs annexed to Auerbach,” he said.
“(2) the Relevant Photographs also show that on the computer screen, tabs were open which record web pages which are not inconsistent with the computer being one operated by Mr Lehrmann (one of the tabs is for ‘Current students’ and another is for the ‘University of N …’: Mr Lehrmann has deposed that, in 2023, he was a law student.
“(3) the Relevant Photographs were taken at a house on Barker St, Randwick on Saturday, 4 March 2023.”
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Justice Lee said the Randwick house was then being licensed by the Seven Network for Mr Lehrmann.
“(5) at 8:13am on Monday, 6 March 2023, there is a text message between Mr Jackson and Mr Auerbach by which Mr Jackson informs Mr Auerbach he has ‘mail’ being that ‘Mark went to Bruce’s on Saturday’ (and forwarding a screenshot of an exchange of messages between Mr Jackson and Mr Mark Llewellyn, the Executive Producer of the Spotlight programme, who had, it appears, been at the Royal Randwick that Saturday (at, I would think, around the time of commencement of the Autumn Carnival) as he is asked by Mr Jackson ‘Did you pick a winner at Randwick on Saturday?’
“Those messages are consistent with Mr Lehrmann meeting Mr Llewellyn at the Randwick house on the day the Relevant Photographs were taken.”
